Tulsa officer fired over social media posts gets second chance at First Amendment suit

DENVER (CN) — A panel of 10th Circuit judges on Tuesday revived a former Tulsa police officer’s First Amendment claim against the city for firing him over social media posts published years before he was hired.

“Brown argues that the district court erred in dismissing his First Amendment claim against the City of Tulsa for failure to state a claim under Rule 12(b)(6) because it concluded that the city’s interest in maintaining a police force that instills public confidence and discourages partisanship in law enforcement outweighed his free speech rights,” U.S. Circuit Judge Richard Federico wrote in a 41-page opinion. “We agree.”

Wayne Brown, who began working for Tulsa as a police officer in October 2018, was fired over Facebook posts in September 2019, one month after he completed training.

The posts, which were uncovered and circulated by a local activist urging the department to “do better,” included a picture of Donald Trump riding a lion and flying a Confederate flag; a skull and crosshairs icon popularized by American sniper Chris Kyle juxtaposed with a “Blue Lives Matter” flag; and a photo of the American flag superimposed with the words “I will fight to my last breath before I submit to Islam.”

Brown sued the city and its police chief in December 2019 claiming his free speech and equal protection rights were violated.

After finding the city’s interest in regulating speech outweighed Brown’s right to free speech, the lower court granted the government’s motions to dismiss in November 2023. Brown appealed to a three-judge appellate panel that held oral arguments at the University of Colorado Boulder Law School in September 2024.

Upon analyzing the balance between Brown’s First Amendment rights and the government’s interest in regulating speech, the panel found the lower court reached its conclusion before Brown was able to conduct adequate discovery. Without discovery, Brown couldn’t know how limiting his speech served a government interest — and neither could the lower court, rendering its initial Pickering test incomplete.

“By granting the motions to dismiss, the district court erred by jumping the gun on conducting the balancing test before the parties proceeded to discovery,” Federico wrote.

Although the police department claims Brown’s posts degraded trust in the agency, the panel found there was no evidence of the posts causing internal disruption, and that the news covered the story after he had been fired.

While Brown prevailed in restoring his First Amendment claim, the panel affirmed the lower court’s dismissal of his 14th Amendment equal protection claim, rejecting his viewpoint discrimination claim for being a “class-of-one” argument that’s inappropriate in a public employment context.

Across the footnotes, the panel also highlighted several unresolved questions about the specific post, as well as the First Amendment’s application online.

“Does this inquiry focus solely on the moment the speech was made or does it also account for the ongoing nature of the speech if the content of the speech (such as a social media post) remains accessible?” Federico wrote in a footnote. “Because the outcome of this appeal does not require that we answer this interesting, yet vexing question, we decline to do so here.”

On behalf of Brown, attorney Robert Muise of the American Freedom Law Center in Ann Arbor, Michigan, praised the decision for bolstering police protection against activists.

“It is clear from this unanimous decision that private citizens who choose to be police officers do not surrender their constitutional rights upon accepting employment with the government,” Muise told Courthouse News over email. “Since it is always in the public interest to vindicate constitutional rights, this appellate court decision reversing the dismissal of the officer’s civil rights lawsuit benefits all private citizens who cherish our fundamental freedoms.”

City attorney Lawson Vaughn represented Tulsa on appeal. A representative for the city declined to comment citing the pending litigation.

Federico and U.S. Circuit Judge Veronica Rossman constitute Joe Biden’s sole 10th Circuit appointees. They joined Trump-appointed U.S. Circuit Judge Joel Carson on the opinion.

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